The new law against ‘revenge porn’ is welcome, but no guarantee of success

Authors

Disclosure statement

Erika Rackley receives funding from The British Academy.

Clare McGlynn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Police and prosecutors in the UK are now equipped with a new criminal offence in order to tackle so-called revenge pornography – where typically an abusive or vengeful ex-partner distributes explicit sexual images of their former partner without their consent.

Such images routinely go viral, distributed widely across social media and arriving at “ex-girlfriend” revenge porn websites, or even mainstream pornography sites. For the women affected – and it is overwhelmingly women – it can be devastating. Some have their working and professional lives threatened, other rightly fear for their personal safety, especially where their address or other forms of identification are included (known as “doxxing”). Needless to say this can also entail mental health problems and knock-on effects on family life and relationships.

Private sexual images

The new offence in the Criminal Justice and Courts Act is defined as where a person distributes a “private sexual photograph or film”, where the disclosure is made without consent, and with the intention to cause distress to the person featured. The defendant faces up to two years in prison, or a fine.

The first point to note here is that the law only covers private sexual images, where they must include activity “not of a kind ordinarily seen in public” and show exposed genitals or pubic area, something a reasonable person would consider to be sexual.

Clearly, defining what is sexual is always going to be difficult, so we are left with a rather opaque definition that will give prosecutors room for manoeuvre. While we can be pretty confident an image of kissing would not be considered private and sexual intercourse would, this leaves considerable ground in between.

This highlights a further limitation of the new law: it is concerned only with private sexual images, not the breach of an individual’s privacy per se. While this perhaps makes sense in terms of limiting the law’s scope, in cases that don’t involve expressly sexual images the victim must rely on the vagaries of a patchwork of alternative civil and criminal legal remedies such as copyright, harassment or misuse of private information.

Consent

Any images agreed to be private and sexual must also be distributed without the consent of the person concerned. This is right: the law should focus on consent. But how to demonstrate a lack of consent? We know all too well from rape prosecutions that demonstrating non-consent is difficult. All too often consent is assumed, leaving the victim to try to demonstrate otherwise.

Will the public, magistrates, judges and juries assume that if a woman has taken a sexual image of herself, or allowed one to be taken of her, that she consents to its disclosure? This doesn’t seem to be much of a leap. After all, we’ve certainly seen a number of censorious reports exhorting women to “keep their clothes on” as a solution to this particular problem.

Intention to cause distress

Finally, the law requires that the image must be distributed with the specific intention to cause distress to the victim. This places a potentially significant limitation on the efficacy of the law. In some cases, proving intention to cause distress may be relatively straightforward – such as through comments left with the images. But what about circumstances where the distributor says he – and it is overwhelmingly a he – passed it on for a fee paid by a website? Or if he claims that he thought the victim wouldn’t mind, or indeed that she might be pleased, or that it was just a “bit of fun”?

If it’s hard to prove intention to cause distress by the original poster of the image, it will be even more difficult to show such an intention for those who subsequently re-post and distribute the image further. It is these nameless, faceless hundreds or thousands of others whose actions spread the image far further that cause the real harm.

Yet whatever their intentions are they are unlikely to be to cause the victim distress. This limit on the law should also mean that where it can be shown that distribution was accidental, or because of an online account being hacked, there will be no offence.

The bigger picture

So while this law is certainly welcome – it makes clear to all that revenge porn is unlawful – it remains to be seen whether it will be effective. The Ministry of Justice has two campaigns, be aware b4 you share and #NotoRevengePorn, to raise awareness of law, but while we’ve focused on the limits of the law as enacted, we should also question the capacity – and inclination – of police to pursue complaints and to bring prosecutions when the law comes into effect.

Ultimately, while the law is a welcome addition in the array of legal tools with which to tackle the abuse and humiliation of women, what is really needed is cultural change: a shift in societal attitudes so that it is not just the breach of someone’s privacy by maliciously distributing private images – sexual or otherwise – that is condemned, but also the culture of hostility and aggression that feeds and underpins it. The law can only play a limited role in bringing about that change.